IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31226

LOUIS THIBAULT, JR.

Plaintiff - Appellant

v.

BELLSOUTH TELECOMMUNICATIONS INC; ROBERT J PARKER, doing

business as Parker Communications; DIRECTIONAL ROAD BORING INC;

PARKER COMMUNICATIONS INC; ROBERT W PARKER; PARKER

COMMUNICATIONS LLC

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Louis Thibault, Jr., (Thibault) brought suit against BellSouth

Telecommunications (BellSouth), Directional Road Boring, Inc. (Directional), and

Robert J. Parker, Robert W. Parker, and Parker Communications LLC

(collectively Parker) arising out of electrical splicing work he performed in New

Orleans, Louisiana in the aftermath of Hurricane Katrina. Thibault claimed

violations of the Fair Labor Standards Act (FLSA), under 29 U.S.C. § 207(a)(1),

a Louisiana state-law breach of contract, and failure to pay wages under LA.

REV. STAT. ANN. § 23:631. The trial court dismissed these claims on summary

United States Court of Appeals

Fifth Circuit

F I L E D

July 26, 2010

Lyle W. Cayce

Clerk

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No. 08-31226

judgment. Thibault appeals the dismissal of the FLSA claim and the breach of

contract claim. We address two issues: first, whether Thibault may maintain

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a claim under the FLSA, and second, whether summary judgment is appropriate

for his breach of contract claim.

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BACKGROUND

As a result of Hurricane Katrina, BellSouth’s telephone infrastructure

suffered serious damage. BellSouth undertook the project of rewiring its entire

New Orleans Area telecommunications grid. To complete this project, BellSouth

employed “splicers.” A splicer installs, cuts, repairs, and tests various high

voltage cables. Because of Katrina, BellSouth could not, by itself, restore phone

services to the region. Accordingly, BellSouth contracted with Directional to

provide assistance with their project. Directional also employed their own

splicers. But even Directional’s additional splicers did not suffice. Directional

therefore contracted with Parker to provide additional splicers for the project.

Parker contacted Bill Peek, a splicer in Delaware. Parker informed Peek

that the job would require about eighty-four hours of work per week at an hourly

rate of sixty-eight dollars and a fifty dollar per-diem. He also informed him that

BellSouth and Directional filed cross claims against Parker arising out of Parker’s

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duty to defend and indemnify. Parker filed a cross claim against Directional claiming

Directional breached its contract with Parker by failing to pay the correct amount for splicers. 

The trial court resolved BellSouth and Directional’s claims against Parker. At the time of this

appeal, however, the trial court had not resolved Parker’s cross claims against Directional.

At the request of all parties, the district court entered an order under FED. R. CIV. P. 54(b)

certifying as final judgments nunc pro tunc the judgment entered against Thibault. That order

allows us to retain our jurisdiction over the case. See St. Paul Mercury Ins. Co. v. Fair

Grounds Corp., 123 F.3d 336, 338 & n.6 (5th Cir. 1997).

Thibault has not briefed or appealed the summary judgment on his claim under

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Louisiana wage law statutes. Therefore, we do not address that claim and the judgment as

to it is affirmed.

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splicers would have to provide their own bucket trucks and tools to do the work.

Mr. Peek was interested, and told his best friend, Lewis Thibault, of the job

opportunity. Mr. Thibault was not a splicer by profession, but had experience as

a navy jet engine mechanic. He owned and operated his own business in

Delaware called K & L Sales, Inc. His business sold picnic tables, storage

buildings, and golf carts. In 2005, his business made over $500,000 in gross

profit. Despite his success, Thibault decided to accept Peek’s invitation to travel

to New Orleans as it would provide a much needed break for him from his

marital problems and he felt New Orleans would be an opportunity to “get [his]

head clear.” Through Peek, Thibault was able to borrow a spare truck and

various tools that the job required. Peek also taught Thibault the basics of

splicing over the course of an evening; Thibault was able to learn the rest on the

job.

In October, Thibault filled his trailer home with water and food, and the

two men drove to Louisiana. From October 4, 2005 to January 6, 2006, Thibault

worked as a splicer. In that time, Thibault made $51,628. Everyday, Thibault

was required to report to Kenner Yard, a property rented by BellSouth. At the

first meeting, Thibault claims that a Parker supervisor informed them that they

would be paid sixty-eight dollars an hour, would work at least eighty-four hours

a week and would get a per diem and a place to park his motor home. Every day,

Thibault showed up to Kenner Yard, and was assigned a specific splicing job in

New Orleans. BellSouth engineers created the overall rewiring plan for New

Orleans. BellSouth supervisors designated the specific jobs to be done daily, and

assigned Directional supervisors to distribute the assignments. When Thibault

received his assignment, he was then required to take his truck to the job and

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work on the problem he was assigned. When completed, Thibault would return

to Kenner Yard and would be assigned another splicing job. He worked in

thirteen-day intervals with a one-day break in between. While Parker paid

Thibault, BellSouth had to approve all vacation and break time. On January 6,

Parker laid off Thibault. Directional offered Thibault a job as a splicer, working

directly for Directional, but Thibault declined. Instead, he returned to Delaware,

and has not worked as a splicer since. Thibault brought this suit against Parker,

Directional, and BellSouth for overtime pay under the FLSA, breach of contract,

and Louisiana wage law statutes.

ANALYSIS

I. Fair Labor Standards Act

Thibault contends that he is entitled to overtime compensation for hours

worked in excess of forty hours per week pursuant to the 29 U.S.C. § 207(a)(1).

The FLSA gives employees certain protections from employers. The defendants

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contend that Thibault is not an employee, but an independent contractor. We

review Thibault’s status de novo. Carrell v. Sunland Constr., Inc., 998 F.2d 330,

332 (5th Cir. 1993). In the present setting, a relevant question is whether the

alleged employee so economically depends upon the business to which he renders

his services, such that the individual, as a matter of economic reality, is not in

business for himself. Id. The contractual designation of the worker as an

independent contractor is not necessarily controlling. See Hopkins v. Cornerstone

Am., 545 F.3d 338, 346 (5th Cir. 2008). Instead, we generally use as a guide five,

non-exclusive factors: (a) the permanency of the relationship; (b) the degree of

The FLSA defines “employee” to mean “any individual employed by an employer.” 29 3

U.S.C. § 203(e)(1). “‘Employ’ includes to suffer or permit to work” Id. § 203(g). 

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control exercised by the alleged employer; (c) the skill and initiative required to

preform the job; (d) the extent of the relative investments of the worker and the

alleged employer; and (e) the degree to which the worker’s opportunity for profit

and loss is determined by the alleged employer. Id. at 332–33. These factors are

merely aids to analysis and no single factor is determinative. Id. at 332.

Here, we believe the holding of Carrell provides substantial guidance. In

Carrell, this Court faced the issue of whether twenty welders were employees

under the FLSA for purposes of overtime compensation. Id. The Carrell court

went through each of the five factors, and decided overall that the welders were

independent contractors. Id. at 334.

A. The Permanency of the Relationship

First, Carrell addressed the permanency of the relationship:

“During each of the years relevant to this lawsuit, none of the

Welders worked exclusively for Sunland. To work consistently

throughout the construction season, which lasts six to nine months,

the Welders moved from job to job, company to company, and state

to state. Sunland hired the Welders on a project-by-project basis, but

made an effort to move the Welders to subsequent projects. The

duration of Sunland's construction projects averaged six weeks, but

some projects lasted only a few days. The average number of weeks

that each Welder worked per year for Sunland varied from

approximately 3 weeks to 16 weeks.”

Id. at 332. Like the welders, Thibault did not work exclusively for the

defendants. He had his own business selling picnic tables, storage buildings, and

customized golf carts, in his home state of Delaware. The nature of splicer work

requires travel to different parts of the nation where the jobs are. Splicers travel

from job-to-job and from state-to-state looking for work. Thibault and Peek

traveled from Delaware to work in the aftermath of Hurricane Katrina. The

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project lasted only until the re-wiring project after Katrina finished. Thibault

intended to return to Delaware after seven or eight months.

B. Degree of Control

Second, the Carrell court addressed the degree of control exercised by the

employer:

“While working for Sunland, the Welders performed only

pipe-welding work. Sunland assigned the Welders to specific welding

work and maintained daily time records for each Welder. Sunland,

however, did not specify the amount of time that a Welder could

spend on an assignment. Sunland required the Welders to work the

same days and hours as the remainder of Sunland's crew, including

taking the same daily break periods.”

Id. at 333. The court also relied on the fact that Sunland classified the welders

as independent contractors, and many of the welders considered themselves selfemployed. Here, the defendants considered the splicers independent contractors.

Many of the splicers considered themselves self-employed. The Carrell welders

did only welding, and similarly here Thibault only performed splicing work. The

defendants assigned the splicers to specific splicing work and maintained daily

time records for each splicer. BellSouth required the splicers to work the same

days and hours as the remainder of the BellSouth crew, including taking the

same daily break periods. In Carrell, Sunland did not control the manner and

method of pipe welding. Carrell, 998 F.2d at 332. Likewise, Thibault explained

that his supervisors would only come by occasionally, and never specified how

Thibault should do the splicing. According to Thibault, the defendants would tell

him what needed to be fixed or spliced or give him blueprints, and then it was up

to Thibault to go out and fix the problem. Once Thibault finished a particular

job, he would report back to be assigned another job.

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C. Skill & Initiative

Third, Carrell examined the skill an initiative required:

“Pipe welding, unlike other types of welding, requires specialized

skills. That the gas companies tested and certified each Welder

before a job demonstrates the specialized nature of the work. As for

the initiative required, a Welder's success depended on his ability to

find consistent work by moving from job to job and from company to

company. But once on a job, a Welder's initiative was limited to

decisions regarding his welding equipment and the details of his

welding work.”

Id. at 333. Thibault argues that he has never worked as a splicer before.

Thibault, however, was a jet engine mechanic in the navy. In fact, he described

his abilities: “I aced the mechanical aptitude test in the Navy. You show me how

to do something one time and I can do it.” Thibault learned the job from his

friend Peek, but also learned how to splice on the job, working next to Peek and

other splicers. Thibault explained that splicing dealt with complicated

equipment:

“I mean, you’re talking – you’re talking phone cables this big around

coming into a cross box, and there might be six of them in there. And

each wire has 3,200 pairs in it, which is 7,400 wires. And its all

going to these terminals. And you had to make sure they were going

in at the right terminal and coming out at the right terminal.”

Like Thibault, individuals learn to splice through an informal apprenticeship.

A fellow splicer testified that it took him about a year to learn the job. Like the

welders in Carrell, the splicers’ success depended on their ability to find

consistent work by moving from job-to-job.

D. Relative Investements

The fourth factor the Carrell court examined was the relative investments

of the worker and the alleged employer. Carrell, 998 F.2d at 333. The court in

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Carrell “recognized” the overall investment by the alleged employer, but it did not

focus on it, as Thibault does in his brief. Instead, Carrell compares the amount

the alleged employer and employee each contribute to the specific job the

employee undertakes. Id. For example, the welders supplied their own trucks,

welding machines mounted on the trucks, and other specialized welding tools.

Id. The welders also assumed the costs of operating and maintaining the trucks

and tools. Id. The welders provided their own lodging and own meals. Id. They

often bought their own assistants, who appear to have been unskilled or semiunskilled laborers. Id. at 333 n.3. The alleged employer in Carrell provided

general liability and worker’s compensation insurance. Id. at 333. It provided

the blades for the grinders that smoothed the surface of a pipe before it was

welded. Id. at 333 & n.2.

Like the welders in Carrell, Thibault provided his own bucket truck, cable

splicer, pump, ventilator, ladder, climbing belt, harness, hard hat, safety vest and

other miscellaneous tools (such as wrenches, hammers, screwdrivers and other

items one would usually find in a toolbox). In fact, the record contains a list of

over 100 different tools splicers were expected to have for the job. Thibault had

his own motor home, which he brought to Louisiana to live in. He stocked it with

enough water and food to last him at least six weeks. He drove two days to get

to New Orleans. We also “recognize[]” the overall investment by the defendants.

Carrell, 998 F.2d at 333. Unlike Carrell, however, we could not find, nor has

Thibault pointed to, any evidence in the record of paying for general liability

insurance. BellSouth did rent property in the area and built a shed and trailer

as a base of operations. BellSouth also provided the materials used in the

splicing: connectors, bonding straps, ground rods, terminal blocks, pedestals,

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cable, and drop wire, for example. The materials that BellSouth provided were

either incorporated into their network or brought back to Kenner Yard at the end

of the day. Parker, on the other hand, did not provide any materials, meals or

other services. Instead, Parker’s involvement in splicing seems limited to

keeping track of the men and the hours. There was some evidence to suggest that

Parker paid for worker’s compensation insurance.

E. Worker’s Opportunity for Profit & Loss

Fifth and finally, the Carrell court examined the degree to which the

worker’s opportunity for profit and loss is determined by the alleged employer:

“Sunland did not solicit bids or proposals from the Welders. It paid

the Welders a fixed hourly rate of $23, plus $10 per day for rental of

their grinders. Sunland intended approximately 40% of the $23

hourly rate to compensate the Welders for supplying their own

welding equipment. Sunland required the Welders to submit invoices

for work performed on Sunland projects. On appeal, the Welders

stress that Sunland exclusively controlled the Welders' compensation

while they worked on a Sunland project: Sunland rarely deviated

from its hourly rate, and it controlled the number of hours that the

Welders worked. . . .

[A] Welder's year-end profits or losses as a welder depended on his

ability to consistently find welding work with other companies and

to minimize welding costs.

. . . .

Sunland exerted some control over the Welders' opportunity for

profits by fixing the hourly rate and the hours of work. Yet, the tax

returns of Carrell indicate that the Welders' profits also depended on

their ability to control their own costs. Moreover, the Welders

worked for numerous companies in each of the years relevant to this

dispute.”

Carrell, 998 F.2d at 333–34. Thibault worked for a fixed hourly rate of $68 per

hour, plus $50 per day per diem. The defendants required the splicers to fill out

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time sheets and invoices of the work performed. Like the Carrell welders, the

splicers’ year-end profits or losses depend on their ability to consistently find

splicing work with other companies. Thibault’s friend, Bill Peek testified that,

even though he lived in Delaware, splicing requires travel from job-to-job across

the country. The splicers here increased profits by controlling costs (repairs,

supply costs, food, water, housing, etc.).

F. Other Factors

The determination of whether an individual is an employee or independent

contractor is highly dependent on the particular situation presented. Carrell, 998

F.2d at 334. We do not hold that all splicers are always independent contractors.

Indeed, the nature of this analysis suggests that in some cases splicers might be

employees. E.g., Cromwell v. Driftwood Elec. Contractors, Inc., No. 09-60212,

2009 WL 3254467, at *3 (5th Cir. 2009) (unpublished). In Cromwell, for example,

the court found the splicers were employees. Id. Like Thibault, the Cromwell

splicers worked twelve hour days, were paid by the hour, provided their own tools

and trucks, and were assigned specific repair jobs each day. Id. at *1. Cromwell

compared that case to Carrell and Robicheaux v. Radcliff Material, Inc., 697 F.2d

662, 666 (5th Cir. 1983) (holding welders were employees under the FLSA). The

Cromwell panel aptly noted, “the facts of this case lie somewhere between those

of Carrell and Robicheaux.” Cromwell, 2009 WL 3254467, at *2. Likewise,

Carrell, Cromwell and Robicheaux are useful case studies in resolving this case.

We believe Thibault falls squarely within Carrell. Cromwell made a distinction

from the Carrell welders that does not apply to Thibault. Unlike the welders, the

splicers in Cromwell did “not have the same temporary, project-by-project,

on-again-off-again relationship with their purported employers.” Id. at *2. Also,

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a relevant distinction from Cromwell relates to the matter of economic

independence: whether Thibault is in business for himself. Carrell, 998 F.2d at

334.

The circumstances of Thibault’s employment reflect that he is not

economically dependant on the defendants. Unlike Cromwell, evidence shows

that Thibault is a sophisticated, intelligent business man who entered into a

contractual relationship to perform a specific job for the defendants. Thibault

worked for three months and his relationship to the defendants centered solely

around the specific project. After splicing in New Orleans, Thibault returned to

his company in Delaware and has not worked as a splicer since. For “tax

reasons,” Thibault had Parker make all payments directly to his company, K &

L Sales, Inc. In 2005, K & L Sales generated$500,503 in profit and $2,492,997

in gross sales. When he worked as a splicer, he also oversaw K & L Sales

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operations and its multiple employees. As the owner of K & L Sales, Thibault

routinely contracted with product manufacturers, customers, and transporters.

He owned eight drag-race cars and also generated $1,478 in income from racing

professionally. In 2005 and 2006, he also owned and managed commercial rental

property that generated some income.

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An individual’s wealth is not a solely dispositive factor in the economic dependence 4

question. In 2005, Thibault reported an adjusted gross income of $82,951. His 1099 from

Parker reported $45,584 in non-employee compensation. 

The plaintiff primarily relies upon Hopkins v. Cornerstone Am. to argue that he was

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economically dependant on the defendents. The employer in Hopkins, however, has

significantly more economic control over its employees than defendants in the instant case had

over Thibault or the other similar splicers here. For example, the sales leaders in Hopkins

worked for the employer for years and were not allowed to work for other companies or

themselves. Id., 545 F.3d at 346. The employer prevented the sales leaders from owning and

operating other businesses. Id. at 344. Further, the court found that the sales leaders

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Because we hold that the summary judgment record does not contain

sufficient evidence to support a finding that Thibault was an FLSA employee

while performing splicer services, we affirm the judgment dismissing the FLSA

claims.

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II. Breach of Contract

Thibault also appeals the dismissal of his Louisiana law breach of contract

claim. Specifically, he argues the defendants promised him six months of

employment and breached that agreement when they fired him after three

months of work. The district court held that the plaintiff did not produce any

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summary judgment evidence that Thibault was hired for a fixed term. Under

Louisiana law, “[a]bsent a specific contract or agreement establishing a fixed

term of employment, an employer is at liberty to dismiss an employee at any time

for any reason without incurring liability for the discharge.” Chapman v. Ebeling,

945 So. 2d 222, 226 (La. App. 2 Cir. 2006). There needs to be an “objectively

determinable end to [Thibault’s] employment” defined when he is hired.

Overman v. Fluor Constructors, Inc., 797 F.2d 217, 220 (5th Cir. 1986). Under

Louisiana law:

“No single foreseeable event triggered the end of his job. . . . The time

when his services would no longer be needed depended on a number

of factors and, ultimately, on the judgment of his supervisor. Such a

exhibited no specialized skills. Id. at 345.

Because Thibault was not an employee, we need not address Thibault’s contention 6

that the defendants were joint employers under the FLSA.

In the trial court, Thibault also brought a breach of contract claim based on a promise 7

that Parker would provide him a paid location to keep his motor home. Since Thibault does

not present this as an issue on appeal and does not brief it, we do not address it and hold any

such claim has been waived by him.

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flexible relationship, promising employment until one's services are

no longer needed, does not establish a fixed term, and, therefore, in

Louisiana at least, must be regarded as employment at will.”

Id. at 220.

Thibault did not produce sufficient summary judgment evidence to sustain

a finding of an agreement to a fixed term. The evidence that Thibault points to

does not specifically relate to any relationship or agreement between one of the

defendants and himself for a term of six months: (1) BellSouth’s leasing of

Kenner Yard for a two year term; (2) BellSouth’s agreement requiring Directional

to supply splicers for a period of at least one year; and (3) Parker’s subcontract

requiring Parker to supply splicers to Directional for at least one year. These

actions are consistent with having no agreement with any specific splicer. They

certainly do not even imply a contract with any specific splicer for a term of six

months. Next, Thibault argues that an email from the Directional vice president

that says splicer pay would remain the same for about 120 to 150 days (four to

five months) suggests a six month contract. This does not get Thibault to the six

month contract he seeks. An employer is free to ensure a group of employees that

their rate of pay would not decrease without committing itself to a contractual

relationship with each specific employee for a completely unrelated fixed term.

Thibault also points us to the length of other splicer’s employment: (1)

Chris Floyd’s employment lasted two years; and (2) Bill Peek’s testimony that

there would be at least six months of work. First, Floyd was an actual employee

of BellSouth who managed the construction project, not a splicer like Thibault.

Floyd’s agreement does not speak to any agreement between Thibault and any

defendant. Second, Peek was questioned about the length of the work:

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“Q. And what did you talk – what did – what was talked about

during this meeting with [the Directional supervisor] about the

length of the job?

A. Well, he said we had at least six months, and it was probably a

whole lot longer than that, but it would depend on our job quality

and – you know, just a pep talk to make everybody do good jobs if you

wanted to stay longer than six months, or whatever.”

Peek’s testimony does not show any objectively determinable end to the term of

employment. See Overman, 797 F.2d at 220. According to this testimony, the

end of the term could have been any time after six months. Finally, Peek

testified that the job specifically depended upon the quality of work by the

splicers. This testimony suggests that “[t]he time when [Thibault’s] services

would no longer be needed depended on a number of factors and, ultimately, on

the judgment of his supervisor.” Id.

Our review of the record does not demonstrate any evidence of the

existence of a fixed term either. Bill Peek handled all the communication with

Parker before arriving in New Orleans. Once in Louisiana, Thibault testified

that Dan Keener, a supervisor for Parker, and others, promised him that the

work would last “at least six months” guaranteed, but that the work would

“probably” take up to two years. Later in Thibault’s deposition, this exchange

occurred:

“Q. All right. You talked earlier about a guarantee of six months of

employment. Did anyone from Directional or BellSouth ever

guarantee to you six months of employment?

. . .

A. The question that I have is ‘guaranteed.’ We were told . . . we

were probably going to be there for two years. Did he guarantee it?

No. ‘Chances are we’re going to be here for a long time, fellows. I

mean, look at it.’

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Q. That’s what he said?

A. Yeah, I mean, look at it. They’re still out there working.

Q. All right. So it’s true no one from BellSouth guaranteed you six

months of employment; right?

A. Correct.

. . .

A. ‘Guarantee’ is the key word in that question.

Q. Well, did anyone from BellSouth promise you six months of work?

A. BellSouth and Directional said that we were going to be here for

a long time.”

Thibault’s testimony has the same problems that Peek’s testimony had in

establishing a fixed term of employment. Thibault himself had a problem with

the word “guarantee,” and could not testify that the defendants guaranteed

anything. According to Thibault, he was told about the length of the project, not

a specific promise or guarantee about the length of time he would be employed.

On this record, we do not find sufficient summary judgment evidence to sustain

a finding of a fixed term of employment for six months.

CONCLUSION

We affirm the judgment of the trial court because, first, Thibault was not

covered by the FLSA because there is no summary judgment evidence sufficient

to sustain a finding that he was an employee under the act and, second, there is

no summary judgment evidence sufficient to sustain a finding that Thibault had

a contract for a fixed term.

AFFIRMED.

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